Purnell v Purnell

JurisdictionSouth Africa
JudgeHoexter JA, Eksteen JA, F H Grosskopf JA, Goldstone JA and Kriegler AJA
Judgment Date11 March 1993
Citation1993 (2) SA 662 (A)
Hearing Date22 February 1993
CourtAppellate Division

Kriegler, AJA.:

A The issue in these two related appeals is maintenance by a man to his former wife. The parties were divorced on 1 July 1986 by order of the Witwatersrand Local Division of the Supreme Court ('the WLD'). The present respondent was the plaintiff in that action and the appellant was the defendant. It will be convenient to retain their original designations in what follows. The order of Court inter alia contained the following B provision:

'3.

The defendant is ordered to pay maintenance for the plaintiff at the rate of R1 000 per month from 1 August 1986 to 31 July 1988.'

In November 1987 the plaintiff, by consent, obtained an order in terms of the Maintenance Act 23 of 1963 ('the Maintenance Act') from the C Johannesburg maintenance court ('the magistrate') for an increase in such maintenance to R1 500 per month. Then in July 1988 she applied to the WLD for relief couched as follows in prayer 1 of the notice of motion:

'That clause 3 of the Court order under case No 11294/84 (ie the divorce action) in the matter between the applicant and the respondent is varied D by the deletion of the words "to 31 July 1988".'

Although the plaintiff's founding affidavit made mention of the order by the magistrate, and annexed the relevant record, the order sought to be varied was that of the WLD.

The factual foundation advanced in support of the application was that E the plaintiff was chronically ill and permanently disabled from earning a living. Affidavits were filed on that issue. An opposed application came before Roux J on the preliminary point whether the WLD was competent to grant the relief sought under s 8 of the Divorce Act 70 of 1979 ('the Divorce Act'). In a considered judgment (reported sub nom Purnell v Purnell 1989 (2) SA 795 (W)) the learned Judge held in favour of the F plaintiff and ordered that costs be in the cause. Thereafter Eloff AJP granted a joint application for a referral of the application for the hearing of oral evidence.

Some two and a half years and numerous pre-trial exchanges later the G hearing eventually commenced before Zulman J on 15 April 1991. The parties perceived the main issue to be whether there was 'sufficient reason' within the meaning of s 8 of the Divorce Act to vary the maintenance order made by the WLD when it granted the divorce. They became engrossed in the question whether the plaintiff had, at the time of the divorce action (but unbeknown to her) and thereafter, been suffering from a debilitating and H occupationally disabling condition called myalgic encephalomyelitis or, colloquially, 'yuppie flu'. Consequently the plaintiff's evidence in the divorce action and the papers filed in an application by her for maintenance pendente lite formed part of the evidentiary material before Zulman J. On the morning of the second day of the hearing the learned Judge mero motu adverted to a reported judgment by Streicher J (Steyn v I Steyn 1990 (2) SA 272 (W)) and pointedly raised with counsel whether (a) the operative maintenance order was not that of the magistrate and (b), if so, whether the WLD was empowered to order a variation thereof. Nevertheless the hearing continued for a further three days on the question of plaintiff's state of health, counsel eventually reverting to J the point raised by the Judge in their closing argument. In due course

Kriegler AJA

A Zulman J held in favour of the plaintiff on the facts, construed the parties' conduct as a consent to the jurisdiction of the WLD to deal with the maintenance order by the magistrate and granted an order in terms of prayer 1 of the notice of motion with costs.

Then followed an opposed application before Roux J for leave to appeal B against the order he had made on the preliminary point. That application was dismissed with costs but...

To continue reading

Request your trial
22 practice notes
  • Botha v Botha
    • South Africa
    • Invalid date
    ...referred to Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A): dictum at 634I applied H Purnell v Purnell 1993 (2) SA 662 (A): applied Santos Professional Football Club (Pty) Ltd v Igesund and Another 2003 (5) SA 73 (C): referred to Sibex Engineering Services (Pty......
  • PT v LT and Another
    • South Africa
    • Invalid date
    ...v Hurley and Another 1986 (3) SA 568 (A): distinguished Pienaar v Pienaar en Andere 2000 (1) SA 231 (O): referred to Purnell v Purnell 1993 (2) SA 662 (A): Road Accident Fund v Rampukar; Road Accident Fund v Gumede 2008 (2) SA 534 (SCA): referred to E Thompson v Thompson 1998 (4) SA 463 (T)......
  • Cohen v Cohen
    • South Africa
    • Invalid date
    ...1992 (4) SA 69 (A): compared Plaaslike Oorgangsraad, Bronkhorstspruit v Senekal 2001 (3) SA 9 (SCA): compared Purnell v Purnell 1993 (2) SA 662 (A): S v Radebe 1988 (1) SA 772 (A): compared. F Case Information Appeal from a decision in the Cape Provincial Division (Comrie J), reported at 20......
  • Cohen v Cohen
    • South Africa
    • Invalid date
    ...(N): referred to Plaaslike Oorgangsraad, Bronkhorstspruit v Senekal 2001 (3) SA 9 (SCA): dictum in para [11] applied Purnell v Purnell 1993 (2) SA 662 (A): applied S v Miller 1976 (1) SA 12 (C): compared J 2002 (2) SA p573 Schmidt v Schmidt 1996 (2) SA 211 (W): referred to A Stinnes v Stinn......
  • Request a trial to view additional results
22 cases
  • Botha v Botha
    • South Africa
    • Invalid date
    ...referred to Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A): dictum at 634I applied H Purnell v Purnell 1993 (2) SA 662 (A): applied Santos Professional Football Club (Pty) Ltd v Igesund and Another 2003 (5) SA 73 (C): referred to Sibex Engineering Services (Pty......
  • PT v LT and Another
    • South Africa
    • Invalid date
    ...v Hurley and Another 1986 (3) SA 568 (A): distinguished Pienaar v Pienaar en Andere 2000 (1) SA 231 (O): referred to Purnell v Purnell 1993 (2) SA 662 (A): Road Accident Fund v Rampukar; Road Accident Fund v Gumede 2008 (2) SA 534 (SCA): referred to E Thompson v Thompson 1998 (4) SA 463 (T)......
  • Cohen v Cohen
    • South Africa
    • Invalid date
    ...1992 (4) SA 69 (A): compared Plaaslike Oorgangsraad, Bronkhorstspruit v Senekal 2001 (3) SA 9 (SCA): compared Purnell v Purnell 1993 (2) SA 662 (A): S v Radebe 1988 (1) SA 772 (A): compared. F Case Information Appeal from a decision in the Cape Provincial Division (Comrie J), reported at 20......
  • Cohen v Cohen
    • South Africa
    • Invalid date
    ...(N): referred to Plaaslike Oorgangsraad, Bronkhorstspruit v Senekal 2001 (3) SA 9 (SCA): dictum in para [11] applied Purnell v Purnell 1993 (2) SA 662 (A): applied S v Miller 1976 (1) SA 12 (C): compared J 2002 (2) SA p573 Schmidt v Schmidt 1996 (2) SA 211 (W): referred to A Stinnes v Stinn......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT